Conner v Bradman & Company Ltd.

For the purposes of the Disability Discrimination Act 1995, a physical impairment may have a substantial adverse effect on normal day-to-day activities even where the claimant can perform those activities, if doing so is painful, restricted or unusually fatiguing. The assessment must disregard treatment or correction, including treatment which has improved the condition, and must take account of the likely effect without prospective treatment.

In assessing future earnings, the Ogden Tables are the starting point where loss is quantifiable and the evidence is sufficiently certain. Their disability adjustment may be modified where the evidence shows that the standard figure would produce an unrealistic result. A claimant need only take reasonable steps to mitigate loss and need not accept unsuitable alternative employment.

The defendant admitted liability for 75 per cent of the damages arising from a road traffic collision in which the claimant suffered a serious knee injury. The trial concerned the assessment of damages, particularly whether the claimant was disabled within the meaning of the Disability Discrimination Act 1995, whether he had failed to mitigate his future earnings loss, and how that loss should be calculated.

The claimant was expected to undergo knee replacement surgery and could no longer continue as a motor mechanic, but could work as a taxi driver. The central issues were the statutory meaning of disability, the reasonableness of the proposed alternative employment, and the appropriate approach to quantifying the resulting earnings loss.

1. The claimant was disabled within the meaning of the Disability Discrimination Act 1995. His knee injury caused substantial adverse effects on mobility and other normal day-to-day activities. He experienced pain and restriction when using stairs, walking, bending, squatting, getting in and out of the bath and remaining on his feet.

2. The assessment was not confined to whether the claimant could technically perform an activity. Pain, restriction and fatigue affecting the manner or duration of performance were relevant. The court also disregarded the beneficial effect of the earlier arthroscopic surgery and the anticipated knee replacement under Schedule 1 to the Act.

3. The joint medical statement was the fullest and most up-to-date evidence of the claimant’s condition and prognosis. It was a collaborative statement signed by both experts. A detailed attempt to attribute individual sentences to one expert was impermissible under CPR 35.12.

4. The claimant had not failed to mitigate his loss. He was required to act reasonably, but was not obliged to accept work for which he had no suitable aptitude or experience. Becoming a taxi driver was a reasonable response to the loss of his mechanic’s occupation. The court relied on Banco de Portugal v Waterlow [1932] A.C. 452 and Harlow and Jones v Panex (International) [1967] 2 Lloyd’s Rep 509.

5. The Ogden Tables were the appropriate starting point. A Smith v Manchester Corporation (1974) 17 K.I.R. 1 award was inappropriate because the claimant would definitely lose his present employment. A Blamire v South Cumbria Health Authority [1993] P.I.Q.R. Q1 award was inappropriate because the future loss was sufficiently certain to quantify conventionally.

6. The disability adjustment in the Ogden Tables was modified from 0.49 to 0.655. The evidence showed that the claimant was likely to work as a taxi driver for much of his remaining working life. Loss of future earnings was therefore assessed at £86,114.05. Total damages were £218,404.41, of which the defendant was liable for 75 per cent, namely £163,803.30. Interest and costs were left for further consideration.